Chapter 1. Personal Property.
I. Finder’s Rights. (7 cases, 2 cited, 3 notes).
II. Bailments. (4 cases, 6 cited, 1 notes).
III. Gifts. (3 cases, 5 cited).
IV. Unauthorized Possession and Bona Fide Purchasers. (5 cases).
IVA. Adverse and Other Possessors of Personal Property. (4 cases).
V. Accession.
Chapter 2. The Law of Neighbors.
A. Adverse Possession.
1. Statutory Basis. (1 case).
2. The Elements of Adverse Possession.
3. The Policy and Future of Adverse Possession.
B. Rights of Lateral and Subjacent Support.
1. Lateral Support.
2. Modifying the Duty of Support by Statute.
3. Subjacent Support.
C. Air and Light.
1. Airspace.
2. Rights in Air and Light.
D. Nuisance.
E. Water Rights.
1. Diffuse Surface Water.
2. Groundwater.
3. Riparian and Littoral Rights.
Chapter 3. Servitudes and Easements.
I. Easements.
A. Creation of Easements. (3 cases).
B. Easements Implied by Necessity. (3 cases).
C. Easements Implied by Past Use. (1 case).
D. Prescriptive Easements. (2 cases).
E. Scope of the Easement. (3 cases).
F. Transferability.
G. Termination of Easements. (1 case).
II. Real Covenants. (4 cases).
III. Equitable Servitudes. (1 case).
IV. Termination of Covenants (or servitudes). (1 case).
Chapter 4. Estates in Land.
I. The Fee Simple (6 cases).
II. The Fee Tail.
III. The Life Estate.
IV. Marital Estates.
A. Common Law.
B. Statutory Changes in Marital Estates.
C. Community Property.
D. Homestead Rights. (No cases).
V. Concurrent Estates.
A. Basic Characteristics. (No cases).
B. The Creation of Concurrent Tenancies.
C. Relations among Concurrent Tenants. (0 cases, 5 notes).
D. Termination of Concurrent Tenancies. (2 cases).
VI. Reversions, Reverters, and Powers of Termination.
VII. Remainders.
A. Creation of Remainders.
B. The Classification and Characteristics of Remainders.
VIII. The Statute of Uses and Executory Interests.
IX. Powers of Appointment.
Ejectment: Recovering possession of land. Jury trial.
Trespass: Provded a remedy for any direct and tortious interference with the actual possession of either land or chattles. Money damages were included.
Case or Trespass on the case: remedy for indirect or consequential injury to land or chattels resulting from the wrongful act of the defendant.
Trover: remedy where the defendant has “converted” the plaintiff’s chattel to his own use by wrongful seizure, withholding, or disposition. (Owns it later).
Replevin: Action to recover possession of chattels. Never expanded beyond seizures by way of restraint. (Later broadened).
Detinue: Defendant, if found wrongfully to withheld possession of the plaintiff’s chattel, had the option of returning the chattel or paying its value in damages. (Latter similar to the outcome in trover).
Equitable actions: injunctions against interference with such interests, rescission of property transactions, reformations of instruments, and removal of “clouds” on title to land.
Jus tertii irrelevant in ejectment and trover. Cases divided in replevin and trespass.
Chapter 1. Personal Property.
I. Finder’s Rights. (7 cases, 2 cited, 3 notes).
Can master have a claim against chimney sweep boy? (VL in reverse).
Personal property litigation usually all or nothing. Not much balancing.
Two things required for possession. 1) Actual power over the thing. 2) A manifest intent to control.
As a possessor, have a right against everyone except the rightful owner.
Armory is not a very important case in the law of damages. Most cases will turn out like the lottery ticket and the fire hose, liable only for the ordinary consequences of what the defendant has done.
Clark v. Maloney. Prior possessor wins, even though his logs were floating rather than being in the prior possessor’s possession.
Law often depends on possessory rights, because people don’t keep receipts.
Keron v. Cashman. (HDL case). Court held joint find. RH says Judgment of Solomon.
Kicking a pebble is not a manifest intent to control it.
Giving the money to their father was not intent to abandon. Intention matters.
Knowledge of a thing’s value not required for someone to possess it. (Narcotics exception).
Conversion makes you the owner (not liable to others, I think).
Barker v. Bates. The claim of landowner extends to anything on the land. “Ratione soli.”
Helmholz’s log story.
Distinction between lost, abandoned, and mislaid property. Depends on the mental state of the prior posessor.
Difficult to reconcile Sharman’s broad holding with other cases.
Distinguish Sharman and Hannah (defendant never in physical possession of premises, rather than the employment issue in Sharman).
Distinguish damages in Hannah (£66 rather then £88, what jeweler sold it for) and Armory.
Could Hannah sue the jeweler? (BFP).
Courts often judge decisions on the conduct of the plaintiff in the case.
Favorite v. Miller. Could have sued museum if transaction went through (BFP).
Embedded property in Favorite belongs to owner. Nontrivial or technical trespass enough to deprive finder.
Armory v. Delamirie. Clark v. Maloney. Barker v. Bates. South Staffordshire Water Co. v. Sharman. Hannah v. Peel. McAvoy v. Medina.
Bridges v. Hawkesworth. Elwes v. Brigg Gas Co.
Keron v. Cashman. Wallender v. Barnes. The Winkfield.
II. Bailments. (4 cases, 6 cited, 1 notes)
E: Bailment is rightful possession of goods by one not their owner.
Tripartite standard from Roman law. Mutual benefit (bailee must use ordinary diligence to protect from damage or loss), Sole benefit of bailor (liable only for gross negligence), Sole benefit of bailee (extraordinary care).
Contractual limitation: Even by K, bailee generally may not relieve himself of gross negligence.
Must show bailor knew of it and accepted it.
A bailment is a delivery of possession.
Either an implied (fictitious) contract or lawful possession of an item by one not the owner.
Whether a K is a bailment depends on a “fair approximation of their expectations.”
License to occupy space is not a bailment.
Delievery and acceptance are essential for a bailment.
Liability in Peet v. Roth for ring because “only the unusual value was concealed.”
No liability in Samples v. Geary. (fur piece concealed in coat).
Find cases that fall between Samples and Peet.
Normally burden of production and persuasion for negligence are on the bailee.
Bailee has the burden to establish that its negligence did notcause the loss.
Is the dead dog case a bailment? More like surgery or taking your pants to the cleaners?
Allen v. Hyatt. Issue is whether enclosed parking is a bailment. Is there control over car? Need ticket to get out. What about storage facilities?
Trend has been to hold that parking lots are not bailments. NJ dumps bailments and has presumption of negligence instead.
Think of implications for other cases. (Locker downstairs, marina, etc.)
Difference is waivers in Allen and Carr. Damages can be unpredicatble and extrememly high in Carr.
Generally, posting signs or handing out receipts is not enough to limit liability for bailments.
Courts will not allow you to limit liability for conversion unless you are very specific.
Although, some states consider disapperances presumption of conversion. Waiver will only be effective if D can prove he didn’t convert.
Cowen v. Presspich: Voluntary vs. Involuntary bailees. (Exercising dominion). Burning the bond, making a paper airplane.
Voluntary bailee has an absolute duty to deliver to the right owner. (Liable for conversion when misdelivery). Involuntary bailee had no duty so long as loack of volition continues.
Boyer says involuntary bailee under duty of ordinary care under the circumstances.
Chickens hypothetical.
Peet v. Roth. Allen v. Hyatt Regency. Cowen v. Presspich. Carr v. Hoosier Photo Supplies, Inc.
Samples v. Geary. U.S. v. Atlantic Coast Line R.R. Riggs v. Bank of Camas Prarie. Dispeker v. New Southern Hotel. Rhodes v. Pioneer Parking Lot. Weaver v. American Oil Co.
Swarth v. Barney’s Clothes, Inc.
III. Gifts. (3 cases, 5 cited).
E: A gift is a present transfer of property w/o any consideration or compensation.
Gifts generally not revocable (except causa mortis).
Delivery: Symbolic or constructive delivery OK when impossible or inconvenient to deliver. Something representing the gift, or the means to obtain the gift.
Most courts also hold written instrument is enough for delivery of the gift.
Intent: the right must be given, though the enjoyment may be postponed.
Inter Vivos Gift must have: 1) Intent of the donor to make a transfer. 2) Delivery of the gift, actual or constructive, to donee. 3) Acceptance by the donee.
Intent requires an intent to transfer an interest in the chattel at the present time. Gift in the present of a future interest is OK.
Irons: There was intent, but no delivery.
See Harlan Fiske Stone law review article on delivery.
Helmholz and the Hershey bar. “Grantor reserves the right to eat the candy bar and also to revoke the gift entirely.” Gifts are inter vivos are irrevocable.
Gruen gave to his son the remainder interest in the picture, but retained in himself a life estate.
Delivery must proceed to a point of no return. For stocks, that means a transfer of record on the stock books of the company (Szabo).
Deliveries may be made to third parties, as a trustee for the donee (not an agent for the donor).
Statute of Wills: In order to make a gift that applies at the time of your death, you have to meet certain requirements. Helmholz could be dead at 2:35.
Engagement rings as conditional gifts. Iowa: “A gift ma be conditioned on the performance of some act by the donee, and if the condition is not fulfilled the donor may recover the gift.”
Gifts Causa Mortis. Exception to Statute of Wills. Applies to chattels.
Gift Causa Mortis must have: 1) Intent to make a gift. 2) Gift must be of personal property. 3) Must be made under apprehension of imminent death. 4) Must be delivered at time of the gift to the donee, or someone for the donee, and donee must accept the gift.
Ownership is dependent on the donor’s death.
Two arguments in Woo: the UCC says mere delivery of a check is not as assignment of funds, and delivery must be “actual and complete, such as deprives the donor of all further control and dominion.”
Delivery requirement seems to contradict Gruen’s “circumstances” test.
But gifts causa mortis are revocable. Shouldn’t delivery requirements be less stringent?
E: Courts less likely to accept symbolic and constructive delivery of gifts causa mortis.
Irons v. Smallpiece. Bunn v. Markham. (cited). Gruen v. Gruen. Young v. Young. (cited). Matter of Brandeth. (cited). Speelman v. Pascal (cited). Matter of the Estate of Szabo. (cited). Woo v. Smart.
IV. Unauthorized Possession and Bona Fide Purchasers. (5 cases)
Bona fide purchasers: One who is in wrongful possession of goods (thief, defrauder, finder, etc.) sells them to one who buys for value and without knowledge that the seller has no title.
General rule: seller cannot convey better title that that which he holds.
Always applies to theft.
Exceptions for “voidable title” (B obtains by fraud from A and then sells to C. A cannot recover).
Exception for estoppel. (A expressely or impliedly represents that B is owner of the goods or has authority to sell them). UCC has entrusting goods to a merchant.
Anderson v. Gouldberg broadens possessors rights to include trespassers (exception for rightful owner or owner of locus in quo).
Not all wrongful possessors will be protected. Dorell v. Clark, money in slot machines.
Three distinctions between Anderson and Hill. 1) Presumption of title is rebutted by the true owner in Hill. 2) Tresspass in Anderson vs. Trover in Hill. 3) The fact that the owner was known in Hill, and not in Anderson.
If O’s property is stolen, he can sue anyone who converted the item.
Porter case seems more like theft than deception. No intention that title would pass.
UCC rules supplement, rather than replace, common law on BFP’s.
Equitable estoppel: distinguish Porter and Zendman (jewelry merchant).
Equitable estoppel can rely on a number of things. (nature of the item, merchant, clothed with indicia of ownership, fraud vs. theft). Could be found in Porter.
Perhaps customary practices in art world should constitute good faith.
L.Rev. article: Protection against double liability usually the most common jus tertii defense.
Anderson v. Gouldberg. Jefferies v. The Great Western Railway. Russell v. Hill. Porter v. Wertz. Zendman v. Harry Winston, Inc. (cited).
IVA. Adverse and Other Possessors of Personal Property. (4 cases).
A cause of action (and the S/L) cannot accrue until there is a wrong.
Often different S/L’s to recover land (real property) and chattels (personal property).
In Chapin, S/L probably began with the mortgate (inconsistent with the agreement).
But when could defendant have received notice that an S/L was running?
Many states say S/L won’t run during fraudulent concealment.
Estate of McCagg: S/L will not run until a wrong occurs. (Demand and refusal).
Lubell: Laches might be different if painting was stolen from private party and displayed in museum instead.
In New York, replevin S/L runs from demand and refusal (unless in possession of a thief).
New Jersey imposes a due diligence requirement and S/L runs when theft is discovered.
Court did not impose a diligence requirement on museum (even though Porter said custom wasn’t good enough).
Laches is a delay coupled with prejudice. Lubells would lose out on the art market and more difficult to track down original thief.
Could Lubells sue the Elkon Gallery for $200,000 rather than $17,000?
Four possible rules for stolen art. Helmholz agnostic as to which one is the best. Page 21.
New York’s clear demand and refusal rule somewhat diluted by laches.
Chapin v. Freeland. Solomon R. Guggenheim Foundation v. Lubell. O’Keefe v. Snyder. Moore v. The Regents of the University of California.
V. Accession.
When the goods of two different owners are incorporated together, the titel to the resulting product goes to the owner of the principal goods.
Principle of severability: U.S. rule is no accession when it can be removed w/o damage to the principal parts. Exceptions for security interest, unless added part is owned by a 3rd party, or the part has a security interest in a 3rd party. (for debtor is not harmed nor benefited).
Court might also hold a severable part to be an accession to protect persons who detrimentally rely on an apparent association of parts to the whole. (Circumstances and equities of the case).
Accession (turns logs into cabin). Specification (2x4’s). Confusion (mixes them).
In all three cases, the change causes the title to be lost.
In Bank of America, were the engine, tires, and transmission accessions to the car? No. Court rejects the “usefullness” theory and adopts the “removability” theory.
Bank could recover the parts, but not the services.
Restatement of Restitution 42(2) says duty to compensate for value of the repair work and the enhanced value of the van depends on the remedy sought by rightful owner (in this case, the Bank). If replevin, no duty, if conversion, such value is deducted from damages. (This is all predicated on the mistaken belief that the improver or a third person on whose account he acts in the owner).
Restatement says when chattels cannot be profitably severed, there can be no specific restitution. If the removal of chattels is all possible, specific restitution is allowed, or alternatively the value of the chattel added.
A.M. Leasing v. Baker: Denied recovery for removable parts. No “mistaken belief” that he (or the third party) owned the backhoe. Parts were added on reliance of a third party’s promise to pay. Restatement only applies to fourteen “mistaken beliefs.”
Things might have been different if JS knew of the bank’s security interest, or made no effort to locate the true owner. (Mistaken belief won’t include ostrich with his head in the sand).
Also would be different if Bank sued Duncan after Duncan paid for the parts.
Bank might have tried to claim title to the car by specification, but the case is more like accession.
See Restatement of Restitution on page 80 of casebook. Differences between replevin and conversion.
If Bank later sold car to a BFP, JS could still recover the parts unless equitable estoppel. (Like why not sue immediately rather than waiting for the sale to a BFP?)
For confusion, when unintentional or mutual consent of owners, each contributor owns his proportion. When one party intentionally confuses, he has the burden of establishing the extend of proportional ownership, and all reasonable doubt is resolved against the other guy.
Bank of America v. J. & S. Auto Repairs. Law review articles.
Chapter 2. The Law of Neighbors.
A. Adverse Possession.
E: Suits to recover property are called ejectment suits. Once S/L passes, wrongful possessor gets title to the land.
Only need to check the chain of title S/L when purchsing property. (Perhaps longer if owner was under a disability.
Open, notorious, and visible means similar to a typical owner of similar property.
Hostile means w/o owner’s consent.
Minority of states bar bad-faith possessors. No squatters.
Most AP cases are boundary disputes.
If true owner re-enters the property, S/L starts from scratch.
Tacking only allowed if privity. Most courts hold tacking applies whether A recites the true or false boundaries to B.
Tacking applies to both owner and AP.
AP cannot record title, because he has not deed. Judicial determination recorded as if a deed.
Buyer of property must inspect to be sure record owner still owns it and can convey a good deed.
Conflicts: generally first possessor has priority over subsequent one.
1. Statutory Basis. (1 case).
Fleming v. Griswold. 10 years after such disability be removed.
But S/L began to run when her father owned the land, even though she was under a disability. She had no interest at the time. Kept running.
Relation back. Once the S/L has run, the adverse possessor is given the same rights as if he held the property from the time the S/L accrued. Under it, the holder of the record title has no claim to damages to the land during the period of adverse possession. It would be a “contradiction in terms.”
S/L can’t wipe out tax lien on property before S/L runs. The lien is the right of the government.
Fleming v. Griswold.
2. The Elements of Adverse Possession.
Actual. Continuous. Exclusive. Hostile. Open and Notorious (notice).
Issue of taxes. Suppose taxes weren’t paid? Usually relates to hostility.
Some states require that taxes be paid for A.P. Belief in ownership.